Rule 320 – Re-establishment of rights

1. Where a party has failed to observe a time-limit set by these Rules or the Court for a cause which, despite all due care having been taken by the party, was outside his control and the non-observance of this time limit has had the direct consequence of causing the party to lose a right or means of redress, the relevant panel of the Court may upon the request of that party re-establish the right or means of redress.

2. The Application for Re-establishment of rights shall be lodged with the Registry within one month of the removal of the cause for non-observance of the time-limit but in any event within six months of the non-observed time-limit. Within that time-limit a fee shall be paid for a Request for Re-establishment of rights, in accordance with Part 6.

3. The Application shall:
(a) state the grounds on which it is based and shall set out the facts on which it relies; and
(b) contain the evidence relied on in the form of affidavits from all persons involved in the nonobservance of the time-limit and the persons involved in establishing the precautionary measures of due care taken in order to avoid such cases of non-compliance.

4. The omitted act shall be performed or completed together with Application for Re-establishment within the time-limit mentioned in paragraph 2.

5. There shall be no grant of Re-establishment of rights in respect of the non-observance of the time limit mentioned in paragraphs 2 and 4 of this Rule.

6. The panel shall decide on the Application for Re-establishment of rights by way of order. The other parties shall be given an opportunity to be heard beforehand.

7. There shall be no right to appeal from an order rejecting an Application for Re-establishment of rights or from an order granting Re-establishment of rights.

Case Law

Court of Appeal

IPPT20260428, UPC CoA, Optopol v Topcon
Request for discretionary review by Court of Appeal dismissed of retroactive extension of time period for lodging Reply (R. 220.3 RoP, R. 29(a) RoP, R. 9.3(a) RoP). Impugned order not manifestly incorrect. The LD dismissed the application for re-establishment of rights pursuant to R. 320 RoP and used its discretion to retroactively extend the time period for lodging the Reply based on R. 9.3(a) RoP. 

IPPT20260310, UPC CoA, Angelalign v Align Technology
Failure to meet a time period for submitting a written statement in ongoing proceedings is governed by R. 9.3(a) RoP, (R. 220.3 RoP). R. 320 RoP is relevant if a time limit is missed that relates either to completely new proceedings or to applications made after the conclusion of proceedings, such as the initiation of appeal proceedings, new proceedings on the merits, applications for the assessment of damages, challenges to decisions declaring appeals inadmissible or objections to default judgments. Even after a deadline has been missed, request for an extension of the timeline can be submitted and the time period can be extended retroactively (R. 9.3(a) RoP). The fact that the Local Division considered it sufficient that the submission of the incorrect reply was based on human error is not objectionable given the circumstances of the present case. This cannot be considered a manifest error.

IPPT20250820, UPC CoA, expert e-Commerce v Seoul Viosys
Leave to appeal - request to refer questions to the CJEU denied (R. 221 RoP, Article 21 UPCA). Right to seek a cost decision (Article 69 UPCA) elapses after expiry of the one month time limit (R. 151 RoP). Can only be remedied through reestablishment of rights (R. 320 RoP). No reason to refer any questions to the CJEU for a preliminary ruling regarding the one month time limit of R. 151 RoP (Article 14 Enforcement Directive). The provision is not complex. The requirement does not go beyond what is necessary to achieve their objective. The provision clearly does not disproportionately affect the party’s right to effective judicial protection. In addition R. 320 RoP provides for re-establishment of rights.  

IPPT20250724, UPC CoA, Late filed application representative
Late filed application to be registered as representative on the basis of “other qualifications” under Rule 12.1(a) EPLC Rules after the expiry of the one year transition period denied (Article 48(2) UPCA). A re-establishment of rights under R. 320 RoP is not possible because the RoP are not applicable to the EPLC Rules Even if the RoP would be applicable, the deadline from R. 12.1 EPLC Rules is not a deadline that could be subject to a re-establishment of right since the wording refers to the fact that certain courses and certificates “shall … be deemed as appropriate” which implies that this is not a procedural deadline but a material provision.

IPPT20250606, UPC CoA, Hanshow v VusionGroup
Upon expiry of the one-month period pursuant to R. 151 RoP, the substantive right of the successful party to apply for a decision on costs expires. R. 151 RoP is to be regarded as materially preclusive. Re-establishment of rights (R. 320 RoP) is generally applicable and must be regarded as a general rule in this case. A party may apply for re-establishment within one month of the reason for missing the deadline being removed – but in any case within six months of the missed deadline.

Court of First Instance

IPPT20260113, UPC CFI, LD Munich, Heraeus v Vibrantz
Re-establishment of rights granted in the context of a failure to observe a time limit for initiating a procedure for cost decision in the context of a cost ratio. ( Rule 320 RoP , Rule 151 RoP) Dissenting opinion issued pursuant to Article. 36 Statute of the UPC. Claimant missed the application deadline (Rule 151 RoP). Where a party has failed to observe a time limit, despite all due care having been taken, the relevant panel of the Court may upon the request of that party re-establish the right or means of redress. (Rule 320.1 RoP). The requirement of “all due care” is in principle met if the party has taken all reasonable precautions to enable it to meet the deadline and the deadline was missed for a reason beyond the party's control , this includes knowledge of the legal system and the relevant decisions. A represented party must assume responsibility for any fault on the part of their UPC representative. Inadequate knowledge of the law is generally not sufficient grounds for re-establishment of rights. However, the Claimant – exceptionally – cannot be accused of misjudging the legal situation in the specific circumstances of the case at hand, despite being represented by a lawyer. Dissenting opinion of Judge Brinkman disagreeing  with the narrow interpretation of the regulations.  (Article. 36 of The Statute of The Unified Patent Court, Article 69 UPCA ) . The application to be inadmissible due to a lack of legal interest – application should be admitted in the cost proceedings, thus making re-establishment of rights unnecessary and devoid of legal interest. It is clear from the Rules of Procedure and Article 69 UPCA that a “cost decision” means a decision on the reimbursement of costs. However, in this case the Claimant is not requesting a cost decision, they are only requesting that their 40% portion be used as a deduction from the amount they have to pay to the Defendants 

IPPT20251204, UPC CFI, LD Düsseldorf, Aesculap v Shanghai Boijn Medical Instrument
Court proposes alternate course of action. Claimant withdraw objections on re-establishment of rights on the basis that the arguments are problematic with regard to the question of the implementation of a proper “random sample check” by the lawyers.  (Rule 320 RoP). 

IPPT20251021, UPC CFI, LD The Hague, Amycell
Permanent injunction by default judgement in infringement action, following preliminary measures of 31 July 2024 and appeal of 28 November 2025. Patent valid and infringed. (Article 25 UPCA) Earlier preliminary measures upheld by order of a permanent injunction, with the addition that total penalty be maximised ; (Art. 63 UPCA , Article 34 UPCA).
Re – establishment of rights denied after failing to submit the Statement of Defense on time by a default decision in order dated April 1 2025.  (Rule 320 RoP, Rule 355 RoP).The applications filed by the Defendant after the Order was issued, are not admitted and the request to reverse the Order with these applications is dismissed. In the Order the termination of the Action with a decision by default was announced. The fact that some time passes between the issuing of the Order, does not change this. The default decision only confirms the injunction that is already in place pursuant to the PM Order; it does not change the factual and legal situation, apart from replacing a provisional by a permanent injunction. 

IPPT20250602, UPC CFI, LD Hamburg, Lionra v Cisco
If a time limit provided for in the Rules of Procedure or set by the court has been missed, the party has no option but to apply for re-establishment of the previous status, provided that it is not time limits that cannot be extended (R. 9.3 RoP, R. 320 RoP). The standard of care must be interpreted autonomously (R. 320.1 RoP). The required care (“all due care”/”Sorgfalt”/ “toute la viglance nécessaire“) is generally deemed to have been exercised if the party has taken all reasonable precautions to enable it to comply with the time limit. This includes, among other things, the implementation of team functions and rules on representation. The requirements for the standard of care are further specified by the fact that compliance with the required care is equivalent to the party ultimately missing the deadline for a reason beyond its control ("outside his control"/"hors de son contrôle"). In accordance with these principles, the application for reinstatement had to be granted. The plaintiff has credibly demonstrated that it has implemented a system for monitoring and controlling deadlines that is adequate in terms of content, based on the dual control principle and monitored by the legal representative, at least on a random basis. It has credibly demonstrated that that despite the dual control principle the failure to record the deadline for submitting cost claims was inadvertently not noted. The plaintiff's legal representative cannot be accused of a lack of supervision, instruction or selection of the employees. In this respect, a further distinction must be made between the requirements for compliance with and monitoring of non-extendable deadlines and those for compliance with and monitoring of deadlines that are extendable in principle. The standard of care for non-extendable deadlines [...] is higher because failure to meet them immediately threatens a loss of rights. In contrast, the time limit at issue in the present case for initiating proceedings for a decision on costs is already extendable in principle.

IPPT20250401, UPC CFI, LD The Hague, Amycel
Application to re-establish the right to file Statement of Defence rejected for non-observance of due care (R. 23 RoP, R. 320 RoP). Given the circumstances, Defendant, and thus his counsel, had an obligation to take (pre-cautionary measures of) due care to avoid non-observance of the time-limit set by the Rules of Procedure. Consequently, the SoD submitted on 4 March 2025 shall not be considered. As the right to file the SoD is not re-established, a decision by default shall be rendered in the infringement action. The same applies to a relating counterclaim for revocation, if any.

IPPT20241011, UPC CFI, LD Munich, SES-imagotag v Hanshow 
Costs for the appeal instance rejected due to failure to comply with the time limit. (R. 151 RoP, R. 320 RoP, R. 9(3) RoP). Re-establishment of rights under R. 320 RoP, as a lex specialis, takes precedence over Rule 9.3 (a) RoP.